Settlement in the Federal EEO Process

In his recent FELTG Newsletter article How Much Is Too Much In Settlement? Ernest Hadley writes, “The EEO process isn’t about what’s just or fair. It’s about providing a legal remedy for a legal wrong where one has occurred. That’s one of the great things about settlement. The parties can come up with alternative solutions. What the parties can’t do is to agree to give the complainant greater relief than he or she would be entitled to as relief upon prevailing in the case. “

What are your thoughts on this specific issue, or on the broader topic of settlements? Does the federal government spend too much money settling EEO claims?

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It is not uncommon for the complainant to settle a case with relief that would not be awarded by the AJ. There is no way to determine how much the federal government spends settling EEO claims because those funds usually come from Operations and Maintenance accounts. In Fiscal Law, that is a wide open appropriation and not easily audited. Judgments are also paid from “O & M” because agencies do not have a DOJ like Judgment Fund, but there is probably some reporting requirement under the so called No Fear Act. Most settlements are merely a shakedown instigated by the complainant, his/her attorney, and often assisted by a lazy EEOC AJ who would rather not hear the case and write a decision.

They probably spend too much on EEO claims. BUT, I see managers and supervisors do really, blatantly, stupid things every day. You can send them to training, but too many leave training with an attitude of this is me, this is my management style, love it or leave it. What are you going to do? fire me?

I have been in public sector for almost 10 years and have seen more EEO issues than all my years in private sector. Most of those I see never become formal complaints because people are afraid they will end up worse off then they are. There is a situation going on right now that the employee is experiencing retribution and went to the next level up. Was told it was all in their mind. They were just imagining that the supervisor was doing things to make them even more miserable. Even with letters from witnesses. REALLY?

Private sector, you are going to be fired or some type of descipline. I personally, in private sector, had another person send out an email that insulted me. We paid a visit to HR and he had to send out another, just as public, email apologizing. Both of our bosses agreed that was how it should be handled. Another said some inappropriate things in a meeting and laughed, expecting everyone to laugh with him. He would have never said anything like that to a man. So, another trip to HR and at the next meeting a public apology.

Public sector they may ask you to resign or give the person a slap on the wrist/scolding, but no one will ever know if there was any descipline. I haven’t seen anyone leave yet when they had a settlement in favor of the employee, so no one was asked to resign or fired. They didn’t get any time off for bad behavior. There are no substantial consequences as I see it. If there are no consequences (firing, forced time off, formal apologies), where others can see there are consequences to bad behavior, it will continue. Government will continue to pay too much on settlements. Employees will view bad behavior as condoned by management or that management protects management. There is no open door policy in reality. All the whistleblower training everyone is forced to take each year is laughable to most employees. Most of the time the employee ends up leaving because they are so demoralized at the end of the process. If they stay, they have to continue to work for the people who supported the supervisor and the supervisor, and with coworkers who see them as defeated, even if they won the case, because nothing happened to the perpetrator.

You should be careful when you suggest MOST cases are merely a shakedown, quite the opposite is ture. MOST cases filed are done so because a violation of some kind has occurred. MOST people are much more interested in getting a fair chance, they’re not looking for an angle to make a quick buck. EEOC is necessary for many reasons, but the most important reason in my opinion is to keep the playing field somewhat level. Walking a mile in shoes of someone whom have felt the sting of unfair treatment may just change your opinion.

Every EEOC hearing settlement I have been involved with was a complainant and usually AJ shakedown. Not necessarily MSPB appeals involving terminations when the appellant and agency agree to a simple “resignation for personal reasons.” There was an AJ in Baltimore who has since retired (not Gilbert) who as a settlement judge would demand to speak to the agency director over a shakedown settlement, usually $ to cover the complainant’s attorney fees. I respect complainants who go all the way to hearing, but many settle for little or nothing or just enough to pay their attorney, at least that is my experience but I know other agencies that will give away everything just so they don’t have to do a hearing. That is a shakedown and the practice tells me that the complainant was never serious about his/her complaint. If a complainant can survive a summary judgment in district court, the DOJ used to open its Judgment Fund wallet and settle because their civil attorneys just could not be bothered taking a Title VII or other discrimination case to a jury. It is probably different now that agencies have to pay those judgments and settlements that go to federal court.

True/false: To win an EEO complaint regarding non-selection on a competitive job announcement you must prove you were the best qualified person on the certificate.

False. There is no “best qualified” person. There is, rather, a listing of fully qualified persons who applied for the job, who each accumulated enough points to make the cert. As a practical matter, all those on the cert are equally well qualified. “Best” is subjective, a matter of opinion, like a beauty contest.

If the above is true, then how does a person ever manage to win an EEO complaint regarding non-selection? It is not at all uncommon for a complainant to win such a case. How does he/she do it? (In the rest of this article, “he” will refer to a person of either gender.)

(Below assumes the complaint is based on membership in an EEO protected class, such as race, religion, age, gender, etc.)

First, he sits down with an EEO counselor and states his complaint. The counselor does some checking and files a report, a copy of which goes to the employee. If, after reading the report, the employee still feels he was unfairly passed over, he can file a formal complaint. This is when it gets interesting.

The formal complaint is reviewed by the EEO manager. If the complaint is in order, the manager will request a formal investigation by an outside, independent source. The investigator will gather information from all concerned, with great thoroughness. His final report will include all pertinent documents and statements from panel members, HR employees, and others. The investigator will be careful to be neutral and make no recommendations.

The employee reads the entire file, carefully. He may find nothing amiss, in which case he will drop the complaint. But he may see problems, such as: certain procedures were not followed, requirements were somehow overlooked, or there were irregularities of one kind or another. For example:

The management labor agreement specifies that all candidates must be interviewed, with written justification for any omissions. Four persons were interviewed while four others were not. There is no documented justification for the omissions.

Management asks for a new cert with more candidates from a wider search area, ostensibly because they need to select more persons than originally planned. And then management selects the original number anyway, leading to suspicions they were actually looking for applicants of a certain class not found on the first cert but present (and selected) on the second, and this is the real reason they asked for a new cert.

Despite requests from the investigator, the agency fails to provide demographic information regarding incumbents in the same job title where the position was being filled.

In their sworn statements, panel members indicate the selection(s) was(were) discussed with and approved by a GS-15 director. The meeting and discussion with such a comparatively high-level manager might suggest the selecting official was aware there was something questionable about the selection(s), something that could be challenged.

An email from the EEO manager to the HR supervisor is included in the investigative file, but the text is redacted. It turns out the redacted text characterizes the HR handling of the complainant’s application as “a train wreck waiting to occur.”

Above is just a sampling of facts that may substantiate a charge of unlawful discrimination. There are many other possibilities. If the employee still believes his complaint is justified, he requests a formal determination, either by his agency or by the Equal Employment Opportunity Commission, i.e., a hearing before a judge.

It is generally quite difficult for an applicant to know with certainty whether there was something wrong in a job selection process. The EEO procedure makes it clear, one way or another.

In summary, it is not necessary – or even possible – for a complainant to prove he was the “best qualified.” This is far too subjective. Management failure to comply with applicable requirements can, in and of itself, sustain a charge of unlawful discrimination.